The Government of India has drawn flak this year for its aggressive campaign to intensify the regulation of digital service providers, its latest target being over-the-top or OTT Platforms and,  specifically, those platforms which provide intermediation services for online news, video and audio content. In a rapid shift from its earlier stance on the suitability of a self-regulation regime for OTT Platforms, the Government recently rejected the draft of a Self-Regulation Code drawn up by fifteen (15) significant OTT Platforms including Netflix, Disney Hotstar and Prime. Thereafter, vide notification dated November 9, 2020 (the Notification) [1], the following categories of digital internet content were brought within the ambit of the Ministry of Information and Broadcasting (I&B Ministry):

• Films and audio-visual programmes made available by online content providers; and
• News and current affairs on online platforms.

While the actual consequences of the Notification will materialise once the I&B Ministry rolls out regulations for such platforms, the Government’s decision to regulate OTT Platforms has raised legitimate concerns regarding creative expression on the internet. This post analyses the background of this Notification and its possible effect on online content.

Facts Preceding the Government Notification

In order to capture the debate unfolding around OTT regulation, it is necessary to glean context from the facts preceding the Notification.

In March 2015, the Telecom Regulatory Authority of India (TRAI) had issued a consultation paper on OTT platforms hinting at a licensing regime which provided communication or application-based services on the internet [2]. The premise for regulating OTT Platforms back then was that such platforms provided services directly through the telecom service providers, which were regulated by the TRAI. However, this proposition to comprehensively regulate OTT Platforms was later dropped.

Thereafter, the IAMAI released three (3) drafts of self-regulation codes between January 2019 and September 2020 [3]. In February 2020, a group of OTT platforms had launched the Digital Curated Content Complaint Council (DCCC) [4], which required its members to censor content that promoted violence, contained child sexual abuse material, or was banned by a court of law. The DCCC also provided a consumer grievance redressal mechanism for content accessible on OTT platforms. In March 2020, the Government set a hundred (100) day timeline for the platforms to sign up as members to the DCCC and formulate a self-regulation code. The Notification was published after the third draft of a self-regulation code submitted by the IAMAI was rejected in September 2020 [5].

The Notification also comes close on the heels of the notice issued by the Supreme Court in a writ petition seeking constitution of an autonomous body for monitoring digital content in India [6]. This is, by no means, the first case where regulation of content on OTT platforms was sought through the judiciary.

Briefly, the judicial discourse on the issue of regulation of OTT platforms began in 2018. The Madras High Court sought regulation of OTT services, after taking suo motu cognisance of suicide by a 19 year-old after having played the online game, the ‘blue whale challenge’. While highlighting the responsibility of online platforms towards content moderation in the public interest, the High Court directed the Central Government to formulate a framework for OTT services [6].

On September 24, 2019, Madhya Pradesh High Court entertained a writ petition which sought the regulation of online content, and the removal of explicit and illegal content from OTT Platforms [7]. Several criminal proceedings over online content on grounds of obscenity, indecent representation of women, and content hurtful to religious sentiment followed suit.

It is pertinent to mention that action against content on OTT platforms in India is not always motivated by public interest. The Government of India has a proactive stance towards online censorship, which recently culminated in the conspicuous takedown of John Oliver’s Last Week Tonight web episode on Prime Minister Narendra Modi from Hotstar. Bearing this in mind and also those instances where political inclination has affected decisions to allow public exhibition of movies such as Udta Punjab and Padmaavat, the Notification may be a harbinger for a regime that stifles free speech and creative freedom on the internet.

 Effect of the Notification on Regulation of Digital Content Platforms

The business of the Government of India is disposed of at various levels within the ministries/departments according to the Government of India (Allocation of Business) Rules, 1961 by, or under the general or special directions of the minister in-charge. By adding entries to the list, “digital/online media” have become part of the order of business for the I&B Ministry. It is yet to be seen whether the ministry will follow the UK model of regulation and delegate the regulation of digital content to an existing body such as the DCCC or constitute a separate body and notify regulations for digital content. If the practices in the UK or Australia are any indicator, the Government may divide regulation. For example, functions such as assessing and assigning an age-rating to content could be delegated to industry bodies such as the Internet and Mobile Association of India (IAMAI) while the supervisory function and adjudication could be retained by the Government.

To ascertain the level of regulation, two possible indicators in this regard are analysed further in this post (i) the Government’s grounds for rejecting the latest self-regulation code, and (ii) the existing jurisprudence on censorship and preserving artistic freedom under Article 19(2) of the Constitution of India.

Grounds of Rejection of Self-Regulation Code

While rejecting the proposed self-regulation code, the I&B Ministry stated that the mechanism lacks independent third-party monitoring, a well-defined Code of Ethics, and does not clearly set out criteria for classifying prohibited content. The I&B Ministry advised IAMAI to look at the regulatory mechanism adopted by the Indian Broadcasting Content Complaints Council, an independent self-regulatory body for television content [8].

General entertainment on the television is largely self-regulated by the Indian Broadcasting Foundation (IBF), an industry body which works closely with the I&B Ministry. To avoid external censorship, the IBF undertakes self-regulation in accordance with the 2008 Guidelines proposed by the I&B Ministry [9]. The Broadcasting Content Complaints Council (BCCC) is the grievance redressal system established under the aegis of the IBF which gives binding decisions based on complaints against non-news broadcasted content. The BCCC comprises members of the judiciary, generally former Supreme Court or High Court judges as chairpersons, as well as independent members and members from the broadcast industry.

In India, free speech is guaranteed under Article 19(1)(a) of the Constitution and both written and broadcasted content can be restricted in accordance with the parameters enlisted under Article 19(2) which states that “Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.” For this reason, broadcasted content has been a regulated subject. Television broadcasting in India is regulated by the Cable Networks Television (Regulation) Act, 1995 and the rules laid down under it. The public exhibition of films in India is regulated by the Cinematograph Act, 1952 and the relevant rules. There were pleas to bring OTT platforms within the purview of the Central Board of Film Certification. However, the Karnataka High Court clarified last year that OTT platforms are outside the purview of the Cinematograph Act, 1952 [10]. Juxtaposing ‘public exhibition’ under the Act, the Court held that content on the OTT platforms is made available on a device-based request from individual users and not on a larger scale, and would therefore not constitute public exhibition.

Tracing Contours of Censorship under Article 19(2) of the Constitution of India

The Supreme Court of India has, on various occasions, exhorted adherence to unwritten codes of maturity and humanity, to limit inhibition of freedom of expression through books and movies. In KA Abbas v Union of India [11], the oft-cited case for standards of obscenity and censorship, the Supreme Court held that the “test that would be applied to determine obscenity must be judged by the standards of reasonable, strong and firm-minded men who possess ordinary common sense and prudence and not by an out of the ordinary or hyper-sensitive mind.”

The test of clear and present danger for censoring free speech was propounded by Justice Holmes in Schenck v United States [12]. This was applied by the Supreme Court of India in the context of movies under Article 19(2) in S Rangarajan v P. Jagjivan Ram [13]. The case involved public exhibition of a movie that criticised a reservation policy for the benefit of members of ‘backward communities’. The Supreme Court acknowledged that a movie, owing to its profound influence on the audience, unlike books and newspapers cannot function in a free market. The Court applied the test of clear and present danger to hold that freedom of expression through a movie can be restricted if the expression poses a clear and present danger which has a direct and proximate nexus with the expression at hand. The Court specifically held that open criticism of Government policies and operations is not a ground for restricting expression and allowed public exhibition of the move in question.

In Bobby Art International & Ors. v Om Pal Singh Hoon & Ors.[14], the Supreme Court examined the relationship between Section 5(2) of the Cinematograph Act and Article 19(2) in detail. The facts involved a biopic on an Indian bandit turned politician Phoolan Devi. As the film contained explicit scenes of rape and abuse, the Supreme Court dealt with the question of whether the public exhibition of the film should be disallowed on the ground that it was disrespectful towards women and a specific group in India known as the Gujjar community. While it was argued that the guidelines for censorship issued by the Central Government specifically advised against allowing scenes involving sexual violence against women, the Court ruled that the guidelines were broad standards and could not be read as a statute. Reiterating the ratio in KA Abbas, the Court held that films dealing with socially relevant themes must attract the least censorship as adult citizens can be relied upon to understand the underlying message.

Conclusion

The healthiest approach towards regulation would be for the Central Government to formulate broad guidelines for OTT platforms while leaving the responsibility of content regulation with industry bodies. Given the dynamic standards of decency, obscenity, racism, and communalism, OTT content regulation in India can follow the demarcation provided by the Supreme Court on the subject. The level of artistic expression permitted in India through movies and books can be a tool for formulating guidelines for OTT platforms.

Internationally, the approach towards OTT regulation is one of collaboration between the government and service providers. In Australia, for example, the function of assigning an age rating to the content uploaded has been delegated to OTT platforms on a trial basis. In fact, after a two (2) year trial period the Australian Government has allowed Netflix to independently assign age rating to content on its platform. [15].

OTT platforms fall outside the purview of regulation under the existing regime in India, but the boom in OTT content consumption by Indian audiences especially during the lockdown was bound to trigger government action to attach regulatory handles to this content. The problem, however, lies in the extent of regulation and how it may affect artistic freedom. While adequate jurisprudence exists for protecting creative freedom for artists and films, the subjective element of regulation imposes undesirable risks of designating a lower threshold for obscenity, radicalization or other elements which warrant censorship.

In essence, the Government of India has not been the most accepting of online speech and examples such as the John Oliver incident give reason to believe that this will not be any different for content regulation on OTT Platforms. While the I&B Ministry advised using the BCCC as a model, the minister has been reported to have cited the Chinese model of OTT content regulation as an example to OTT Platforms [16].

In China, local sites such as Tencent Video have accepted the terms of regulation imposed by the Chinese National Radio and Television Administration while the larger players such as Netflix and Amazon Prime remain banned. This is similar to the Chinese model of regulation of encryption where players such as Telegram and WhatsApp are banned, while local agencies such as We Chat remain in business after a substantial compromise on citizens’ privacy.

In sum, while OTT regulation is desirable, the Indian Government needs to accede to a higher standard of regulation than that of Singapore and China, one which is in line with its own constitutional values promoting online speech and creative freedom.

[1] Cabinet Secretariat, Notification dated 9 November 2020, https://www.livelaw.in/pdf_upload/pdf_upload-384486.pdf.

[2] TRAI Consultation Paper on Regulatory Framework for Over-the- top (OTT) services, https://www.trai.gov.in/sites/default/files/OTT-CP-27032015.pdf.

[3] Summary: IAMAI’s Self-Regulation Code for Online Curated Content Platforms, https://www.medianama.com/2020/09/223-iamai-occp-self-regulation-summary/.

[4]  Digital Curated Content Complaint Council to offer redressal mechanism on OTT content, 5 February 2020, Business Standard, https://www.business-standard.com/article/pti-stories/digital-curated-content-complaint-council-to-offer-redressal-mechanism-on-ott-content-120020501561_1.html.

[5] OTT Players willing to work with the Government to retool IAMAI self-regulation code, 22 September 2020, Live Mint, https://www.livemint.com/news/india/ott-players-willing-to-work-with-government-to-retool-iamai-self-regulation-code-11600755203802.html.

[6] Shashank Shekhar Jha &  Ors. v Union of India & Ors., Order dated 15 October 2020 in WP (Civil) No. 1080/2020.

[7] FICCI CAM Entertainment Law Book 2020, http://www.cyrilshroff.com/wp-content/uploads/2020/05/FICCI-CAM-Entertainment-Law-Book-2020.pdf

[8] The Registrar (Judicial), Madurai Bench of Madras High Court v The Secretary to  Government, Union Ministry of Communications, Government of India, 2018 (1) CTC 506.

[9] OTT Platforms and Digital News Media – New Regulator (And Perhaps a Legal Regime Overhaul), 23 November 2020, Mondaq, https://www.mondaq.com/india/broadcasting-film-tv-radio/1008586/ott-platforms-and-digital-news-media-new-regulator-and-perhaps-a-legal-regime-overhaul.

[10] Indian Broadcasting Foundation, Self- Regulatory Content Guidelines for Non-News and Current Affairs Television Channels, http://www.ibfindia.com/sites/default/files/pdf/Self%20Regulatory%20Guidelines%20for%20non-news%20%26%20current%20affairs%20programmes.pdf.

[11] Padmanabh Shankar v Union of India & Ors (Judgment of the Karnataka High Court dated 7 August 2019 in  W.P. 6050/2019) http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/292918/1/WP6050-19-07-08-2019.pdf.

[12] 249 U.S. 47 (1919).

[13] 1989 (2) SCC 574.

[14] (1996) 4 SCC 1.

[15] Netflix gets approval to classify own shows after two-year trial, the Sunday Morning Herald, 20 January 2019, https://www.smh.com.au/business/companies/netflix-gets-approval-to-classify-own-shows-after-two-year-trial-20190120-p50sim.html.

[16] Malvika Gurung, 5 March 2020, Government Gives 100 Days to Netflix, Amazon & Other OTTs to Form Self-Regulation Rules, China Type Regulation in India? , https://trak.in/tags/business/2020/03/05/govt-gives-100-days-to-netflix-amazon-china-type-regulation-in-india/.